Mr. President, today I rise to introduce the Due Process Guarantee Act, which passed the Senate in 2012 with 67 votes as an amendment to the Defense Authorization Act for fiscal year 2013.…
Mr. President, today I rise to introduce the Due Process Guarantee Act, which passed the Senate in 2012 with 67 votes as an amendment to the Defense Authorization Act for fiscal year 2013.
Unfortunately, the amendment was taken out in the Conference Committee that year. It is my hope that the Senate will pass this legislation again this year, and this time the House will support it so that it can finally be enacted into law to protect Americans from being detained indefinitely.
The bipartisan bill I am introducing today, with Senator Lee as the lead co-sponsor, is almost identical to the amendment that passed the Senate in December 2012 with 67 votes. The previous version of this bill had a hearing in the Judiciary Committee on February 29, 2012.
This legislation is necessary to prevent the U.S. Government from detaining its citizens indefinitely.
Unfortunately, indefinite detention has been a part of America's not- too-distant past. The internment of Japanese-Americans during World War II remains a dark spot on our Nation's legacy, and is something we should never repeat.
To ensure that this reprehensible experience would never happen again, Congress passed and President Nixon signed into law the Non- Detention Act of 1971, which repealed a 1950 statue that explicitly allowed the indefinite detention of U.S. citizens.
The Non-Detention Act of 1971 clearly states:
No citizen shall be imprisoned or otherwise detained the
United States except pursuant to an act of Congress.
Despite the shameful history of indefinite detention of Americans and the legal controversy over the issue since 9/11, during debate on the defense authorization bill in past years, some in the Senate have advocated for allowing the indefinite detention of U.S. citizens.
Proponents of indefinitely detaining U.S. citizens argue that the Authorization for Use of Military Force, AUMF, that was enacted shortly after 9/11 is, quote, ``an act of Congress,'' in the language of the Non-Detention Act of 1971, that authorizes the indefinite detention of American citizens regardless of where they are captured.
They further assert that their position is justified by the U.S. Supreme Court's plurality decision in the 2004 case of Hamdi v. Rumsfeld. However, the Hamdi case involved an American captured on the battlefield in Afghanistan.
Yaser Esam Hamdi was a U.S. citizen who took up arms on behalf of the Taliban and was captured on the battlefield in Afghanistan. The divided Court did effectively uphold his military detention, so some of my colleagues use this case to argue that the military can indefinitely detain even American citizens who are arrested domestically here on U.S. soil, far from the battlefield of Afghanistan.
However, the Supreme Court's opinion in the Hamdi case was a muddled decision by a four-vote plurality that recognized the power of the government to detain U.S. citizens captured in such circumstances as ``enemy combatants'' for some period, but otherwise repudiated the government's broad assertions of executive authority to detain citizens without charge or trial.
In particular, the Court limited its holding to citizens captured in an area of, quote, ``active combat operations'', unquote, and concluded that even in those circumstances the U.S. Constitution and the Due Process Clause guarantees U.S. citizens certain rights, including the ability to challenge their enemy combatant status before an impartial judge.
The plurality's opinion stated:
It [the Government] has made clear, however, that, for
purposes of this case, the `enemy combatant' that it is
seeking to detain is an individual who, it alleges, was `part
of or supporting forces hostile to the United States or
coalition partners' in Afghanistan and who `` `engaged in an
armed conflict against the United States'' there. Brief for
Respondents 3. We therefore answer only the narrow question
before us: whether the detention of citizens falling within
that definition is authorized.''
The opinion goes on to say at page 517 that ``we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe . . .''
Indeed, the plurality later emphasized that it was discussing a citizen captured on a foreign battlefield. Criticizing Justice Scalia's dissenting opinion, the opinion says, ``Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone.'' The plurality italicized and emphasized the word ``foreign'' in that sentence.
Thus, to the extent the Hamdi case permits the government to detain a U.S. citizen ``until the end of hostilities,'' it does so only under a very limited set of circumstances, namely citizens taking an active part in hostilities, who are captured in Afghanistan, and who are afforded certain due process protections, at a minimum.
Additionally, decisions by the lower courts have contributed to the current state of legal ambiguity when it comes to the indefinite detention of U.S. citizens, such as Jose Padilla, a U.S. citizen who was arrested in Chicago in 2002. He was initially detained pursuant to a material witness warrant based on the 9/11 terrorist attacks and later designated as an ``enemy combatant'' who conspired with al-Qaeda to carry out terrorist attacks including a plot to detonate a ``dirty bomb'' inside the U.S.
Padilla was transferred to the military brig in South Carolina where he was detained for three and a half years while seeking habeas corpus relief. Padilla was never charged with attempting to carry out the ``dirty bomb'' plot. Instead, Padilla was released from military custody in November 2005 and transferred to Federal civilian custody in Florida where he was indicted on other charges in Federal court related to terrorist plots overseas.
While he was indefinitely detailed by the military, Padilla filed a habeas corpus petition which was litigated at first in the Second Circuit Court of Appeals, and then in the Fourth Circuit Court of Appeals. In a 2003 decision by the Second Circuit known as Padilla v. Rumsfeld, the Court of Appeals held that the AUMF did not authorize his detention, saying: ``we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C.
Sec. 4001(a) the ``Non-Detention Act'', prohibits such detentions absent specific congressional authorization. Congress's Authorization for Use of Military Force Joint Resolution, . . . passed shortly after the attacks of September 11, 2001, is not such an authorization.''
This requirement for ``clear congressional authorization'' to detain is known as the Second Circuit's ``Clear Statement Rule.''
However, the Fourth Circuit Court of Appeals reached the opposite conclusion, finding that the AUMF did authorize his detention. It is worth pointing out, however, that their analysis turned entirely on the disputed claims that ``Padilla associated with forces hostile to the United States in Afghanistan,'' and, ``like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi.''
Facing an impending Supreme Court challenge and mounting public criticism for holding a U.S. citizen arrested inside the U.S. as an enemy combatant, the Bush administration relented, and ordered Padilla transferred to civilian custody to face criminal conspiracy and material support for terrorism charges in Federal court.
I believe that the time is now to end the legal ambiguities, and have Congress state clearly, once and for all, that the AUMF or other authorities do not authorize indefinite detention of Americans apprehended in the U.S.
To accomplish this, we are introducing legislation again this year which affirms and strengthens the principles behind the Non-Detention Act of 1971.
It amends the Non-Detention Act to provide clearly that no military authorization allows the indefinite detention of U.S. citizens or Green Card holders who are apprehended inside the U.S.
Like the amendment that passed with 67 votes in 2012, the bill creates a new subsection (b) of the Non-Detention Act which clearly states: ``A general authorization to use military force, a declaration of war, or any similar authority, on its own, shall not be construed to authorize the imprisonment or detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.''
Like the previous version, this bill amends the Non-Detention Act to codify the Second Circuit's ``Clear Statement Rule'' from the Padilla case. So new subsection (a) will read, ``No citizen or lawful permanent resident of the United States shall be imprisoned or otherwise detained by the United States except consistent with the Constitution and pursuant to an act of Congress that expressly authorizes such imprisonment or detention.''
Making the Clear Statement Rule part of subsection (a) strengthens the Non-Detention Act even more by requiring Congress to be explicit if it wants to detain U.S. citizens indefinitely. Subsection (b) clarifies that an authorization to use military force, a declaration of war, or any similar authority does not authorize the indefinite detention of a U.S. citizen or a Lawful Permanent Resident of the U.S., also known as a Green Card holder.
Some may ask why this legislation protects Green Card holders as well as citizens. And others may ask why the bill does not protect all persons'' apprehended in the U.S. from indefinite detention.
Let me make clear that I would support providing the protections in this amendment to all persons in the United States, whether lawfully or unlawfully present. But the question comes, is there enough political support to expand this amendment to cover others besides U.S. citizens and Green Card holders?
Wherever we draw the line on who should be covered by this legislation, I believe it violates fundamental American rights to allow anyone apprehended on U.S. soil to be detained without charge or trial.
The FBI and other law enforcement agencies have proven, time and again, that they are up to the challenge of detecting, stopping, arresting, and convicting terrorists found on U.S. soil, having successfully arrested, detained and convicted hundreds of these heinous people, both before and after 9/11.
Specifically, there have been 556 terrorism-related convictions in federal criminal court between 9/11 and the end of 2013, according to the Department of Justice.
Also, it is important to understand that suspected terrorists who may be in the U.S. illegally can be detained within the criminal justice system using at least the following 4 options:
They can be charged with a Federal or State crime and held; they can be held for violating immigration laws; they can be held as material witnesses as part of Federal grand jury proceedings; and they can be held for up to 6 months under Section 412 of the Patriot Act.
I want to be very clear about what this bill is and is not about. It is not about whether citizens such as Hamdi and Padilla, or others who would do us harm, should be captured, interrogated, incarcerated, and severely punished. They should be.
But what about an innocent American? What about someone in the wrong place at the wrong time? The beauty of our Constitution is that it gives everyone in the United States basic due process rights to a trial by a jury of their peers.
As President Obama said when referring to the indefinite detention of non-Americans at Guantanamo:
``Imagine a future--10 years from now or 20 years from
now--when the United States of America is still holding
people who have been charged with no crime on a piece of land
that is not part of our country. . . . Is that who we are? Is
that something that our Founders foresaw? Is that the America
we want to leave to our children? Our sense of justice is
stronger than that.''
The same questions could be asked of those who would indefinitely detain Americans arrested on U.S. soil.
Is that who we are?
Does that reflect the America we want to leave to our children?
Now is the time to clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens and Green Card holders captured inside this country without trial or charge.
The Federal Government experimented with indefinite detention of U.S. citizens during World War II, a mistake we now recognize as a betrayal of our core values.
Let us not repeat it. I urge my colleagues to support this legislation.
Mr. President, I rise today to introduce the Wildlife Trafficking Enforcement Act of 2015, which I authored along with my colleague Senator Lindsey Graham.
This bill will allow the Federal Government to crack down on poachers and transnational criminal organizations involved in the global trade in illegal wildlife products.
Wildlife trafficking has become a global crime that the State Department estimates is valued at between $8 to $10 billion annually. This ranks it as one of the most lucrative types of organized crime in the world, along with drug and human trafficking.
Besides being a major international crime, wildlife trafficking is a morally repugnant practice that threatens some of our world's most iconic species with extinction.
The most disturbing example is that of elephants and rhinoceroses. A recent study estimates that over 100,000 elephants were illegally poached in Africa from 2010 to 2012. At this rate, the African elephant is being killed faster than the species can reproduce, putting it at risk of being wiped off the face of the earth.
Most disturbingly, poachers are slaughtering very young and juvenile elephants for their tusks due to the record high demand for ivory in places like China and the United States.
But the illicit ivory trade is not just a threat to African elephants; it is also a problem for global security. The State Department reports that there is increasing evidence that wildlife trafficking is funding armed insurgencies like Al Shabaab and the Lord's Resistance Army. The illegal ivory trade fuels corruption and violence in Africa.
The rhinoceros has also been decimated by poaching due to record high demand for its horn. Conservation organizations estimate that hundreds of rhinoceroses are illegally slaughtered in Africa each year. It is deeply concerning that the poaching rate for rhinoceroses in Africa appears to be increasing.
Some populations of rhinoceroses are on the brink of extinction. The population of the Sumatran rhinoceros has plummeted by over 50 percent in the last two decades due to poaching, and it is estimated that only about 100 remain in existence. It is estimated that fewer than 10 Northern White Rhinoceroses remain alive in the wild.
The problem is not just confined to elephants and rhinoceroses. Tigers, leopards, endangered sea turtles, and many other wildlife species are being decimated by poaching.
At its core, this legislation increases criminal penalties for wildlife trafficking crimes. The federal government needs stiffer penalties in order to go after organized and high volume traffickers. The President asked for this authority in the National Strategy to Combat Wildlife Trafficking released last year.
Specifically, this bill makes violations of the Endangered Species Act, the African Elephant Conservation Act, and the Rhinoceros and Tiger Conservation Act that involve more than $10,000 of illegal wildlife products predicate offenses under the money laundering and racketeering statutes and the Travel Act.
Currently, each of these wildlife laws carries a maximum prison sentence of only one year for a violation. Under this bill, wildlife trafficking violations can be subject to up to a 20-year prison sentence, as well as increased fines and penalties of up to $500,000 for an offense.
These new penalties will allow the government to change the equation on wildlife crimes. Wildlife trafficking has increased at dramatic rates because the crime is high value and low risk due to weak penalties across the world. Under the new authorities, the Federal Government will have a full range of tools to prosecute the worst wildlife trafficking offenders and to put them behind bars with significant sentences. The new authorities will also act as a deterrent to the criminal organizations currently trafficking illicit wildlife products into and through the United States.
As one of the largest markets for products of illicit poaching in the world, the United States has a responsibility to step up and help to combat this scourge. With this legislation, the United States will set an example for other countries on the need for each country to strengthen penalties for wildlife trafficking. It is critical that other nations around the world with large markets for illicit wildlife products step up to tackle this global problem.
The Wildlife Trafficking Enforcement Act of 2015 will also allow fines, penalties, forfeitures, and restitution recovered through use of the bill's new authorities to be transferred to established conservation funds at the Departments of the Interior and of Commerce. This will enable the Federal Government to use the monetary penalties from a wildlife trafficking conviction to benefit the species that was harmed. Thus, the bill will both act to punish and deter criminals while supporting the conservation of those species that are directly harmed by poaching.
Addressing the issue of wildlife trafficking speaks to our values and morals as a Nation. We have a responsibility to help prevent these endangered species, which have existed for thousands of years, from becoming extinct in our lifetime. It is also clear that Federal law's weak penalties for wildlife crimes have been exploited by poachers and transnational criminals.
I therefore ask all of my colleagues on both sides of the aisle to work with me to enact this legislation this year. The stakes for endangered species like elephants, tigers, and rhinoceroses could not be higher. If we don't crack down on wildlife trafficking, we will be complicit in the slaughter.
Mr. President, I rise today with my colleagues Senators Leahy, Boxer, Durbin, Klobuchar, Murray, Udall, Franken, Wyden and Whitehouse to introduce the Cluster Munitions Civilian Protection Act of 2015.
Our legislation places common sense restrictions on the use of cluster munitions. It prevents any funds from being spent to use cluster munitions that have a failure rate of more than one percent.
In addition, the rules of engagement must specify that: cluster munitions will only be used against clearly defined military targets; and will not be used where civilians are known to be present or in areas normally inhabited by civilians.
Our legislation also includes a national security waiver that allows the President to waive the prohibition on the use of cluster munitions with a failure rate of more than one percent if he determines it is vital to protect the security of the United States to do so.
However, if the President decides to waive the prohibition, he must issue a report to Congress within 30 days on the failure rate of the cluster munitions used and the steps taken to protect innocent civilians.
Cluster munitions are large bombs, rockets, or artillery shells that contain up to hundreds of small submunitions, or individual ``bomblets.''
They are intended for attacking enemy troop and armor formations spread over a wide area.
But, in reality, they pose a far more deadly threat to innocent civilians.
According to the Cluster Munitions Monitor, over the past fifty years, there have been 19,419 documented cluster munitions deaths in 31 nations. The estimated number of total cluster munitions casualties, however, is an astonishing 55,000 people.
While cluster munitions are intended for military targets, in actuality civilians have accounted for 94% of cluster munition casualties.
Death and injury from unexploded ordnance left behind by cluster munitions continues to kill civilians to this day. Today, 23 States remain contaminated by unexploded ordnance left from cluster munitions.
Last year, nine of these countries suffered casualties from unexploded ordnance. They were: Croatia, Iraq, Laos, Lebanon, Cambodia, South Sudan, Sudan, Syria and Vietnam.
More tragically, despite the risk they pose to civilians, cluster bombs continue to be used in conflicts.
Since July 2012, Syrian government forces have used cluster munitions in 10 of the country's 14 governates.
Human Rights Watch has documented that the Syrian government has used seven types of cluster munitions to date, six of which were manufactured in the former Soviet Union and the seventh of which is Egyptian-made.
In 2012 and 2013, the Landmine and Cluster Munition Monitor recorded 1,584 deaths from government-launched cluster munitions in Syria. Approximately 97 percent of the deaths directly linked to cluster munitions were civilians.
For the first time, Human Rights Watch has also obtained evidence that the Islamic State of Iraq and the Levant, known as ISIL, has also used cluster bombs.
According to witness testimony and photographic evidence, ISIL used cluster bombs on at least two occasions near the besieged town of Kobani.
Terrorist groups and other non-state actors would not be able to obtain and use cluster bombs if the world adopted the Oslo Treaty on Cluster munitions.
The Oslo Treaty bans the production, sale, stockpiling and use of cluster munitions. It came into effect in 2010 and to date has been ratified by 88 nations.
Under the Treaty, 22 nations have destroyed 1.16 million cluster bombs and nearly 140 million submunitions.
Unfortunately, the United States is neither a signatory nor state party to the Oslo Treaty.
In fact, the United States maintains a stockpile of 5.5 million cluster munitions containing 728 million submunitions. These bomblets have an estimated failure rate of between 5 and 15 percent.
Rather than adopting the increasing international consensus that cluster bombs should be banned, the Pentagon continues to assert that they are ``legitimate weapons with clear military utility in combat.''
I respectfully disagree. The benefit of using cluster bombs is outweighed by the continuing threat they pose to civilians long after the cessation of hostilities.
The Cluster Munitions Civilian Protection Act would immediately ban cluster bombs with unacceptable unexploded ordnance rates and in areas where civilians are known to be present.
Passing this legislation would move the United States closer to abiding by the requirements of the Oslo Treaty, which has been ratified by many of our allies, including the United Kingdom, France and Germany.
Since 2008 the Congress has banned the export of cluster munitions with a greater than one percent unexploded ordnance rate. While banning the export of these indiscriminate weapons was a positive first step, I strongly believe the United States can do better.
This body cannot compel the administration to sign the Oslo Treaty. However, we can surely take steps to abide by its spirit. Passing the Cluster Munitions Civilian Protection Act would do exactly that.
I urge my colleagues to support this bill.
Mr. President, I rise today to introduce a bill to fully repeal the Defense of Marriage Act, DOMA, and ensure that married same-sex couples are accorded equal treatment by the federal government.
When I first introduced this bill in 2011, only 5 States and the District of Columbia recognized same-sex marriage.
Today, due to a combination of actions by legislatures, voters, and the courts, 36 States and D.C. recognize same-sex marriage. Florida joined the group just this week.
This progress is nothing short of amazing. Over 70 percent of Americans now live in a State where same-sex couples can marry.
The Supreme Court's landmark decision in United States v. Windsor, which struck down Section 3 of DOMA, has caused most federal agencies to accord equal rights and responsibilities to married same-sex couples.
But, despite this progress, the mission of ensuring full equality under Federal law for married same-sex couples is still unaccomplished.
This bill will accomplish that mission. It will strike DOMA from Federal law, and ensure that legally married same-sex couples are treated equally by the federal government, period.
I want to thank my 41 colleagues who have cosponsored this bill.
For my colleagues who have not yet supported this bill: if you believe that couples who are married should be treated that way by the federal government, you should cosponsor this bill. It is as simple as that.
Two major agencies, which serve millions and millions of Americans-- the Social Security Administration and Department of Veterans Affairs-- still deny benefits to some married couples depending on where the couple has lived. This bill would fix that problem.
Let me address Social Security first. An example of the discrimination married same-sex couples still face is the case of Kathy Murphy and Sara Barker. According to a legal filing, this couple married in Massachusetts and shared a ranch house in Texas for nearly 30 years.
In 2010, when Sara was 60 years old, she was diagnosed with an aggressive form of cancer. Sara went through several surgeries and chemotherapy, and Kathy was Sara's caregiver.
Sara passed away on March 10, 2012. As the complaint states: ``Kathy lost her partner of more than thirty years and the love of her life.''
In July 2014--over a year after she applied--Kathy's application for survivor's benefits from Social Security was denied because they lived in Texas together, and Texas does not recognize them as married.
This cost her an estimated $1,200 per month in Federal survivor's benefits.
Veterans and active-duty military personnel in same-sex marriages also are being denied equal treatment by the Department of Veterans Affairs.
Many of these brave individuals have served our country overseas or in war zones, but they may nevertheless be denied a huge range of benefits our nation grants to those who have served in the Armed Forces.
A court filing by the American Military Partners Association explains that:
lesbian and gay veterans and their spouses and survivors .
. . will be denied or disadvantaged in obtaining spousal
veterans benefits such as disability compensation, death
pension benefits, home loan guarantees, and rights to burial
together in national cemeteries.
This is wrong. Our married gay and lesbian soldiers put their lives on the line for our country the same way other soldiers do.
We owe them the same debt of gratitude we owe to all other men and women who serve, and this bill would ensure that we fulfill that solemn obligation.
Continued discrimination against married same-sex couples is not limited to these benefits programs.
Other Federal laws are not part of programs administered by agencies, but they nevertheless are designed to protect families, including spouses.
Let me just give one example--Section 115 of Title 18. Among other things, this law makes it a crime to assault, kidnap, or murder a spouse of Federal law enforcement officer, with the intent to influence or retaliate against the officer.
This law protects the ability of people like FBI agents and federal prosecutors to serve the public knowing there is protection from violence against their families.
These agents and prosecutors investigate and prosecute people like drug kingpins, terrorists, and organized crime figures.
But, even today, it is not clear whether this vital protection for these officers covers those in lawful same- sex marriages everywhere in the country.
These public servants, who protect all of us, should not have to worry that they lack the full protection we provide to their colleagues--but that is the situation we confront today. This bill would fix it.
In addition, Section 2 of DOMA--which was not expressly addressed by the Supreme Court--continues to pose a serious risk to legal relief received by victims of crime and civil wrongs. This bill would repeal it.
Section 2 of DOMA is the full faith and credit provision of DOMA, and it has been the subject of many misconceptions.
When DOMA was enacted, some claimed Section 2 was designed to prevent the Full Faith and Credit Clause of the Constitution from forcing a state to recognize a marriage from another state.
But states have never needed permission from Congress to decide whether to recognize an out-of-state marriage. States have done that under their own laws, subject to other constitutional guarantees like the Equal Protection Clause.
Thus, repealing Section 2 of DOMA simply would not force a State, or a religious institution, to recognize a particular marriage.
While it is on the books, Section 2 may have a very serious impact: it may nullify legal relief awarded to victims of crime and other civil wrongs.
There is a general rule that the judgments of one state's courts will be enforced in another state's courts.
But Section 2 purports to exempt any ``right or claim arising from'' a same-sex marriage from this rule.
Imagine a woman killed by a drunk driver. Her surviving spouse would have a civil claim for wrongful death, or might obtain restitution in a criminal case.
But DOMA could prevent the court judgments in those cases from being enforced in the perpetrator's home State, allowing him to avoid the consequences of his actions.
The same problem could arise in numerous types of cases, such as assaults, batteries, and insurance claims.
Same-sex married couples are the only class of people who are burdened by this sort of legal disability, which hinders the court system from protecting them the same way that it does other citizens.
This is wrong, and it must be repealed.
As a Senator from California, I come to this bill with a strong sense of history.
In 1948, the California Supreme Court became the first state court to find that a ban on interracial marriage violates the Equal Protection Clause. At the time, 29 states still prohibited interracial marriage.
Prohibitions on interracial marriage then were eliminated in 13 other states, so that when the Supreme Court decided Loving v. Virginia in 1967, only 16 states retained bans on interracial marriage.
I very much hope that is where we are today on same-sex marriage.
People of all stripes have come to believe that loving and committed same-sex couples are worthy of the same dignity and respect other couples receive. Public opinion has changed dramatically, and 36 states now recognize same-sex marriage.
The tide has shifted, I hope irreversibly so.
But here, in Congress, we still have work to do.
We must end the discrimination married same-sex couples continue to face at the federal level.
DOMA remains on the books, where it should never have been placed. It could be revived by a different Supreme Court majority.
A future administration also could interpret other laws differently than this Administration has done, potentially restricting the availability of key benefits even further.
The solution is simple: pass this bill, which would eliminate DOMA and accord equal treatment under Federal law for married same-sex couples.
Let me again thank my cosponsors for joining me in this effort, and to urge my other colleagues on both sides of the aisle to support this legislation.
Mr. President, I am pleased to introduce the Transnational Drug Trafficking Act of 2015 with my colleagues and friends, Senators Charles Grassley, Richard Blumenthal, Heidi Heitkamp, Amy Klobuchar and Tom Udall.
This bill, which passed the Senate unanimously in the last Congress, supports the Obama Administration's Strategy to Combat Transnational Organized Crime by providing the Department of Justice with crucial tools to combat the international drug trade. As drug traffickers find new and innovative ways to avoid prosecution, we cannot allow them to exploit loopholes because our laws lag behind.
This legislation has three main components. First, it puts in place penalties for extraterritorial drug trafficking activity when individuals have reasonable cause to believe that illegal drugs will be trafficked into the United States. Current law says that drug traffickers must know that illegal drugs will be trafficked into the United States and this legislation would lower the knowledge threshold to reasonable cause to believe.
The Department of Justice has informed my office that, it sees drug traffickers from countries like Colombia, Bolivia and Peru who produce cocaine but then outsource transportation of the cocaine to the United States to violent Mexican drug trafficking organizations. Under current law, our ability to prosecute source-nation traffickers from these countries is limited since there is often no direct evidence of their knowledge that illegal drugs were intended for the United
States. But let me be clear: drugs produced in these countries fuel violent crime throughout the Western Hemisphere as well as addiction and death in the United States.
Second, this bill puts in place penalties for precursor chemical producers from foreign countries, such as those producing pseudoephedrine used for methamphetamine, who illegally ship precursor chemicals into the United States knowing that these chemicals will be used to make illegal drugs.
Third, this bill makes a technical fix to the Counterfeit Drug Penalty Enhancement Act, which increases penalties for the trafficking of counterfeit drugs. The fix, requested by the Department of Justice, puts in place a ``knowing'' requirement which was unintentionally left out of the original bill. The original bill makes the mere sale of a counterfeit drug a Federal felony offense regardless of whether the seller knew the drug was counterfeit. Under the original bill, a pharmacist could be held criminally liable if he or she unwittingly sold counterfeit drugs to a customer. Adding a ``knowing'' requirement corrects this problem.
As Co-Chair of the Senate Caucus on International Narcotics Control and as a public servant who has focused on narcotics issues for many years, I know that we cannot sit idly by as drug traffickers find new ways to circumvent our laws. The illegal drug trade is constantly evolving and it is critical that our legal framework keeps pace. We must provide the Department of Justice with all of the tools it needs to prosecute drug kingpins both here at home and abroad.
Mr. President, I am pleased to introduce the Protecting Our Youth from Dangerous Synthetic Drugs Act of 2015, with my colleagues, Senators Kelly Ayotte, Richard Blumenthal, Barbara Boxer, Amy Klobuchar, Rob Portman, Charles Schumer, Jeanne Shaheen and Sheldon Whitehouse. This legislation addresses the significant harm that synthetic drugs cause our communities.
When Congress outlawed several synthetic drugs in 2012, traffickers did not stop producing them. Instead, they slightly altered the drugs' chemical structure to skirt the law, producing ``controlled substance analogues'' which are dangerous, chemically similar to Schedule I substances, and mimic the effects of drugs like ecstasy, cocaine, PCP, and LSD.
Manufacturers of synthetic drugs often prey upon youth, selling products such as Scooby Snax, Potpourri, and Joker Herbal. But make no mistake: these products are dangerous. In the first ten months of 2014 alone, poison centers nationwide responded to approximately 3,900 calls related to synthetic drugs.
Under current law, determining whether a substance meets the vague legal criteria of a ``controlled substance analogue'' results in a ``battle of experts'' inside the courtroom. Significantly, a substance ruled to be an analogue in one case is not automatically an analogue in a second case.
The Protecting Our Youth from Dangerous Synthetics Drug Act addresses these issues. This bill creates an interagency committee of scientists that will establish and maintain an administrative list of controlled substance analogues. The Committee is structured to respond quickly when new synthetic drugs enter the market.
Because virtually all of these controlled substance analogues arrive in bulk from outside our borders, the bill makes it illegal to import a controlled substance analogue on the list unless the importation is intended for non-human use.
Finally, the bill directs the U.S. Sentencing Commission to review, and if appropriate, amend the Federal sentencing guidelines for violations of the Controlled Substances Act pertaining to controlled substance analogues.
In sum, this bill sends a strong message to drug traffickers who attempt to circumvent our Nation's laws: no matter how you alter the chemical structure of synthetic drugs to try to get around the law, we will ban these substances to keep them away from our children.
